The State of Minority- and Women- Owned ... - Cleveland.com

Legal Standards for Government Affirmative Action Contracting Programs
• The goal may be adjusted to reflect the availability of DBEs but for the effects of the
DBE Program and of discrimination.
• The recipient must meet the maximum feasible portion of the goal through race-neutral
measures as well as estimate that portion of the goal it predicts will be met through such
measures.
• The use of quotas and set-asides is limited to only those situations where there is no other
remedy.
• The goals are to be adjusted during the year to remain narrowly tailored.
• Absent bad faith administration of the Program, a recipient cannot be penalized for not
meeting its goal.
• The presumption of social disadvantage for racial and ethnic minorities and women is
rebuttable, “wealthy minority owners and wealthy minority firms are excluded, and
certification is available to persons who are not presumptively disadvantaged but can
demonstrate actual social and economic disadvantage.”
• Exemptions and waivers from any or all Program requirements are available. 42
These elements have led the courts to conclude that the program is narrowly tailored on its face.
First, the regulations place strong emphasis on the use of race-neutral means to achieve minority
and women participation. Relying upon Grutter v. Bollinger, the Eighth Circuit held that while
“[n]arrow tailoring does not require the exhaustion of every conceivable race-neutral
alternative…it does require serious, good faith consideration of workable race-neutral
alternatives.” 43
The DBE Program is also flexible. Eligibility is limited to small firms owned by persons whose
net worth is less than $750,000. There are built-in Program time limits, and the recipient may
terminate race-conscious contract goals if it meets its annual overall goal through race-neutral
means for two consecutive years. Moreover, the authorizing legislation is subject to
Congressional reauthorization that will ensure periodic public debate.
The court next held that the goals are tied to the relevant labor market. “Though the underlying
estimates may be inexact, the exercise requires the States to focus on establishing realistic goals
for DBE participation in the relevant contracting markets. This stands in stark contrast to the
program struck down in Croson….” 44
42 Sherbrooke, 345 F.3d. at 973.
43 Id. at 972.
44 Id.
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